You Can Sue for Defamation in Small Claims Court

Wow. I may actually know what I’m talking about.

In one of my earliest postings on this blog (recently updated to reflect the new damage limits), I recommended Small Claims Court to those who have been defamed, but can’t afford an attorney, or where the numbers involved would not justify the expense of an attorney. At the time I wrote that article, the maximum amount of damages that could be recovered was $5,000 as I recall, but it was raised to $10,000 in 2012, and then $12,500 in 2023. (It was originally intended to go to $15,000 that year, but apparently the Governor though that was a little too high.)

Obviously, even with this higher amount, this is not the way to go if you have a case with significant damages, but often the damages are minor, or damages are simply not the victim’s purpose in bringing suit. I suggested that an action in Small Claims Court can be an effective way to stop someone from continuing to defame you, and permits you to respond to anyone who asks you about the rumor, that you sued the defamer in court and won. 

I had some secondhand knowledge of defamation actions being brought in Small Claims Court, but since attorneys are not allowed to represent clients there, I will never be able to test my theory directly. I’ve also been slightly concerned because I have received a couple of emails from readers who say that they were informed by a court clerk that defamation actions cannot be pursued in Small Claims Court.

Thankfully, a reader of my original posting was kind enough to call and spend some time on the phone with me, talking about his experiences. A vicious rumor got started about him some time ago, and like the urban legends that reappear periodically on the web, every few months the rumor about this person grows legs and starts getting spread again. Fortunately, because his professional circle is somewhat small, eventually the rumor reaches people that report back to the victim. He then brings a small claims action against the defamer, and has a witness to the statements.

This caller has brought four such actions, and has won every time. The judgments are small, but for the caller, damages were not the goal. He has found that the suits tend to eradicate the rumor in the community pockets surrounding the person who was spreading the lie. In other words, having lost in court, that person then goes back and tells the same people about the lawsuit. No doubt, the story is not told in flattering terms. Most likely the story goes something like this:

“Joe is such an asshole. I told Dave about how I had heard that Joe was stealing from clients, Dave told him what I said, and Joe sued me in court. The judge awarded him $2,500, so now I have to write him a check for $250 every month until it is paid off.”

But despite how the story is being told, the fact is that the people hearing the story are walking away knowing that it was a lie to accuse Joe of stealing, and Joe won’t put up with the lie being told.

This caller’s successes illustrate a couple of points. First, a “republisher” of a defamatory statement – one who simply repeats what he was told – is as guilty as the person who started the false rumor. Our hypothetical Joe may never learn who started the original rumor, but going after those who are repeating the lie is like a firefighter starting a backfire to stop a fire. It can help to stop the spread of the rumor, and may get back to the person who started it and cause him to shut up.

Secondly, and more to the point of this article, you can sue for defamation in Small Claims Court, regardless of what the court clerks may be saying. Defamation is a tort, such as personal injury. Just as you can sue for personal injury in small claims court, you can sue for defamation. If you get any pushback, ask to speak to a higher up, and ask them to show you the court rule that prohibits defamation actions in small claims court. There is no such rule.

However, as I explained in the original article, a judge in Small Claims Court cannot give any equitable relief. In other words, he or she can’t order the defendant to stop spreading the rumor or to provide a letter of apology, as examples. That is why attorneys often don’t think to suggest Small Claims Court and may be why the clerks think defamation actions cannot even be brought there. (Actually, a Small Claims judge can grant certain limited equitable relief, mostly having to do with contracts, and can condition an award on an act. He could, for example, award $5,000 in damages, reduced to $2,500 if the defamatory statement is removed from the Internet.)

For fun, I asked ChatGPT about suing for defamation in Small Claims Court, and it responded, “you generally cannot sue for defamation in small claims court in California.” But its reasoning for that conclusion was what I mentioned above — the inability of a small claims judge to provide injunctive relief such as ordering that the false statements be retracted. In ChatGPT’s “mind,” defamation claims can’t be brought in Small Claims Court because the judge can’t issue any order. But the strategy I am suggesting accepts that limitation in exchange for the far, far, FAR cheaper alternative of suing in that forum.

When I called out ChatGPT and asked if it could provide any authority for the position that defamation actions cannot be brought in Small Claims Court, it had to concede that “there’s no California authority expressly forbidding defamation actions in small claims court.”

And there are other big advantages to Small Claims Court. In many defamation actions, the specter of an anti-SLAPP motion looms large. If you sue for defamation and the defendant successfully brings an anti-SLAPP motion – convincing the court that the speech was protected – you get to pay the other side’s attorney fees. You are safer from an anti-SLAPP suit in Small Claims Court, and in any event there likely would be no attorney fees. (There are almost no absolutes in the law, so although very unlikely, I am not saying someone could not come up with a way to bring an anti-SLAPP motion in small claims court, such as having the action reclassified to Superior Court, or by bringing an oral motion at the time of trial.) Further, you cannot be sued for malicious prosecution if you lose on a Small Claims action.

With all this said, you’ll be wasting your time in Small Claims Court if you think you can go in and wing it.  You’ll be suing for thousands of dollars, so it will be time and money well spent if you buy and review Everybody’s Guide to Small Claims Court in California.

A word about damages.

More proof that ChatGPT is terrible when it comes to legal analysis comes from its mention of damages. It stated that defamation actions are “not well suited” to Small Claims Court because of the complexity of proving special damages (lost income, business harm). It posited that since actions in Small Claims Court are intended to be brief, proving special damages would be too time consuming. And, rather insultingly to the judges who hear small claims matters, it opined that the issues surrounding a defamation claims are just too sophisticated for that forum. (An example of AI holding us humans in contempt?)

With all due respect to our future AI overlords, ChatGPT utterly failed to recognize the two types of damages in a defamation action — actual damages and assumed damages. Actual damages are just what the name suggests; the measurable damages that resulted from the defamation, such as loss of income. But defamation is unique among torts in that if the elements of defamation are proven, the law provides that the plaintiff MUST be awarded damages, even if no economic damages are proven. We as a society recognize that one’s reputation has value, and damages are assumed if one is defamed. These assumed damages include “mental suffering, anxiety, embarrassment, and humiliation” — even absent proof of economic or special damages. If the false statements made about you were significant and sufficiently widespread, the judge is free to award you the full jurisdictional amount based on loss of reputation and the emotional distress you suffered, even if you did not prove a penny of damages.

Think about it.

There are so many aspects to this area of the law, that my articles soon turn into tomes if I don’t control myself. The prior paragraph is an example of where I can’t just let it stand without further clarification, for fear that it will be twisted. Note that I said a statement needs to be “significant and sufficiently widespread.” When considering whether the false statement will support assumed damages, don’t analyze it from the viewpoint of a fragile wallflower who takes offense at every perceived slight. Instead, use the viewpoint of a person who understands that the occasional insult is just part of the background noise of life. If a waiter falsely stated in front of your date that your credit card had been declined, that might technically satisfy the elements of defamation, but no judge is going to be so outraged by that statement as to award you anything beyond perhaps $5 in assumed damages.

Friends and family can be used to determine the worth of a case. Sit them down with some wine and beer (but not too much), tell them you want them to realistically determine the damages, as opposed to saying what they think you want to hear, and tell them the facts of your case. After they provide their damage calculations, ask them to provide their reasoning to see if the damage amount has any relation to reality, or was just pulled out of their butt.

[Update] I had recommended to a caller that her case was perfect for my Small Claims approach. She said the defamer would not stop defaming her, so I suggested that each time she learned of another defamation, she should drag him to court again. Over a year later she was kind enough to call me to thank me for the suggestion. She stated that in the time since she spoke to me, she had sued him multiple times, and had prevailed every time, with total damages approaching $50,000. I thought about that number after the call, initially thinking it was implausible given the limits on damages in Small Claims Court, but I crunched the numbers and it can be done.

Check the current rules, but as I write this, a natural person (as opposed to an entity) can bring small claims actions for the maximum amount of $12,500 up to twice a year, and can bring an unlimited number of cases that seek $2,500 or less. The limitation to two $12,500 actions in a 12-month period is a rolling period measured from the date of filing, not January–December. So, for example, if the caller filed her first $12,500 case on March 1, 2024, and the second one on April 1, 2024, she’d be eligible to file her third and fourth actions on March 2, 2025 and April 2, 2025. So it was entirely possible that she had sued four times and been awarded $50,000 in a little over one year and one month (plus however long it took for the cases to be heard).

And I have to believe that so long as her evidence was strong, the judge would be more inclined each time to award the maximum, seeing that the defendant continues with the same bad behavior. As you can see, a Small Claims action is not only a very streamlined and cost effective way to proceed, it can also be very lucrative.

[Update] As I predicted in my parenthetical above, concerning an oral anti-SLAPP motion, a caller advised me that he was threatened with an anti-SLAPP motion in response to his small claims case. He added that he had gone to court to observe other cases as a way to prepare for his own trial, and he observed a judge grant an oral anti-SLAPP motion in a small claims case. But that’s as it should be. If a plaintiff is suing for damages in Small Claims Court, arising from protected activity, the court should dismiss the action. As a matter of public policy (as set forth in Civil Code § 47 and Code of Civil Procedure § 425.16), the law immunizes people from what they say in certain circumstances. For example, we don’t want politicians to be able to sue their constituents for defamation as a means to silence any criticism. So if you attend a City Council meeting and call the mayor a no good, lying pony soldier, he or she can’t sue you. If they nonetheless tried to do so (which was the exact fact pattern in my very first anti-SLAPP motion), the judge should (and did) dismiss the case.

But a plaintiff would still be far safer in Small Claims Court, since there would be no attorney and hence no attorney fees. But as with anything I write about the law, I can envision possible exceptions. A corporation can’t defend itself in court, because it is not a person and has no mouth. Thus, a human has to be there on behalf of the corporation, and that human could be an attorney, who might try to claim attorney fees following a successful oral anti-SLAPP motion.